
• • " a\ 



,-ir t - ' ' 















'<^\^ : ^ 



<. 






^. 






^ 






-t-o^ 



K^ 



4o^ 














.v^. 










O 5 " • ^ '^J>- 



V \.^^' •'^■' %.^'''' '^^^^'' \'f ••».'• "-^^ 






A 



\ 



<*, 



.'?-^ 



,v 



oV 









-t- 



V 



«./^>^^^_^'^^ 






,v^ 



^0 c"^"" O J.^ 



-J^' 



o 






















^ .^ ^>aioi:^ '^ ,<^ 






.'^^•. 






1 --'■'v^ r^^a>/%-7, .- 



.s^p. 




V^^ * -'*^-' 






o 



*>*, 



-iy^ 












v\^ 







.■"4Ao>-^ 






o > 
,0 -, 






^?i 



' o 



C 



,^ o. 



,^r;^^*\/ 









.40, 



.-^' 









'D 



. OPINIONS 



'i 



HON. JOHN M. EEAD, 

J 

, OP 

THe'sUPREME court of PENNSYLVANIA, 



IN FAVOR OF THE 



CONSTITUTIONALITY OF THE ACT OF CONGRESS 

OF MARCH 3, 1863, 
"for enrolling and calling out the national 

FORCES, and for OTHER PURPOSES." 



Delivered at Pittsburg, on Monday, November 9, 1863, and at 
Philadelphia, on Saturday, January 16, 1861. 




. PHILADELPHIA: 
CAXTON PRESS OF C. SHERMAN, SON & CO. 

18 64. 



7 



-I 



SUPEEME COURT, JANUARY TERM, 1864 

IN EQUITY. 



No. 3. 



WiLLiAiM Francis Nickels 

vs. 
William E. Lehman et al. 

Francis B. Smith 

vs. [ No. 5. 

David M. Lane et al. 

Henry S. Kneedler 
vs. 

Same. 



No. 7. 



These three bills in equity were filed in the Supreme Court for 
the Eastern District by three individuals, above named, against 
the officers of the Enrolling Boards of the First and Fourth 
Congressional Districts, praying for injunctions to restrain the 
defendants from further proceeding with or under such enrol- 
ment, requisition, and draft, under the Act of od March, 1863, 
and particuhirlv from all proceedings against the said plaintiffs. 
The ground alleged for these applications was the unconstitu- 
tionahty of this Act of Congress. A motion for a special injunc- 
tion was made in each case at Nisi Prius, beiore Mr. Justice 
Woodward, one on 30th August, and two on 1st September, who 
requested his brethren to sit with him at the hearing. The cases 
were ar«nied before a full bench, at Philadelphia, on Wednesday, 
the 23d''of September last, by Messrs. George M. AVharton and 
Charles Ingersoll for the plaintiffs, no counsel appearing on be- 
half of the defendants. There being a disagreement m the 
Court, each Judge delivered a separate opinion at Pittsburg, on 
Monday, the 9th of November. Chief Justice Lowrie and 
Justices Woodward and Thompson were in flavor of granting 
the injunctions, upon the ground that the act was unconstitu- 
tional, whilst Justices Strong and Read were against granting 
the injunctions, and were of opinion that the Act of Congress 
was constitutional. 

The injunctions granted were only preliminary, and were 
limited to the cases of the three plaintiffs in these bills, and were 
in the following terms : 

" Order, November 9, 1863. Preliminary injunction (in each 
case) granted for the protection of the plaintiff', on his giving 
bond with surety, to be approved by the Prothonotary, in the 
sum'of 1500, according to law, and refused for any other purpose." 
But the record showed that no security had been entered, and 
that no writs of injunction bed been issued in either of the three 
cases. On the 12th December, Mr. Knox appeared for the defend- 



ants in each case, and applied to Judge Sti'ong, then holding the 
Nisi Prius, to dissolve the injunctions theretofore granted in the 
court of Nisi Prius. Judge Strong received the motions, and 
appointed the 30th December for their hearing, and, as in the 
fonner proceeding, requested liis brethren to sit with him. The 
motions to dissolve were ai'gued before all the Judges on that and 
the succeeding day, by Mr. Knox for the defendants and Messrs. 
George W. Biddle, Peter McCall, and Charles Ingersoll, for the 
complainants. On the 16th January, 1S(54, Judge Strong, repre- 
senting the majority of the court, made the following order: 
" And now, to wit, January 16, 1804, It is ordered by the Court, 
that the orders heretofore made in all these cases be vacated ; 
and the motions for injunctions are overruled." 

Separate opinions in favor of dissolving the injunctions were 
read by Judges Strong, Read and Agnew, and the joint opinion of 
Chief Justice Woodwaixl and Judge Thompson, against dissolv- 
ing, was read by the Chief Justice. 

It is proper to add, what does not appear on the record, and 
was not known to the Court, that in the case ©f William Francis 
Nickels, he paid his commutation money, ^300, to the Collector 
of the Intei-nal Revenue, and was exem])ted by the Board, and 
opposite his name was written, "commuted." 

In the two other cases, Francis B. Smith claimed exemption 
as being over thirty-five years of ago and married, and on the 
2d November, having established these facts to the satisfaction 
of the enrolling officers, he was exempted ibr that cause, and an 
exemption certificate given to him. 

Henry S. Kneedler, on the 3d Noveinber, paid to John M. 
Riley, Collector of the Internal Revenue, his commutation money, 
^oOU, and upon handing to the enrolHng officer on tlie same day 
the duplicate receipt, he was exempted by the Board by reason 
of "payment of commutation money." 

Upon this state of facts these complainants were not entitled 
to have the injunctions granted by the Court on the 0th Novem- 
ber, 1863. 

It is perhaps better that this did not appear to tlie Court, as 
it has led to the establishment of the constitutionality of the 
Act of Congress, so far as the Supreme Court of Pennsylvania 
is concerned. 

The first opinion is principally occupied l)y the (piestion of 
constitutionality; the second discusses at length the position 
distinctly put forth in the first, that a State Court cannot interfere 
by Habeas Corpus or by injunction, to stoj) or interfere with the 
Federal officers in the execution of the duties imposed upon them 
by an Act of Congress, when acting in strict conformity to its 
provisions. No such power can be conferred b^^ a State Legisla- 
ture upon any of their courts or magistrates. 



o p I ]sr I o isr 

OF NOVEMBER 9, 1863. 



The power of the Government of the United States ex- 
tends over all the States and Territories of the Union. It 
has no rival in the State governments, whose power is strictly 
confined to their own territorial limits. It is the only repre- 
sentative of the people recognized by foreign nations, in their 
various relations with us, in time of war and peace. All the 
powers therefore vested in the National Government, are 
necessarily supreme and paramount, and cannot be rightfully 
disobeyed by her citizens. This General Government has the 
sole and exclusive power of declaring war and making peace, 
of raising and supporting armies, of providing and main- 
taining a navy, of laying and collecting taxes, duties, imposts, 
and excises, to pay the debts, and provide for the common 
defence and general welfare of the United States, and of 
borrowing money on the credit of the United States. The 
avowed object of these and other powers, vested in the General 
Government, was to form a more perfect Union, establish 
justice, insure domestic tranquillity, provide for the common 
defence, promote the general welfare, and secure the blessings 
of liberty to the people of the United States and their pos- 
terity. It was therefore solemnly declared, and made a 
fundamental article of the National Constitution, that the 
Constitution, and the laws of the United States Avhich shall 
be made in pursuance thereof, and all treaties made, or which 
shall be made, under the authority of the United States, shall 
be the supreme law of the land; and the Judges in every 
State shall be bound thereby, anything in the Constitution 
or laws of any State to the contrary notwithstanding. 



The power to raise armies for the United States being 

vested solely in Congress, the legislative branch of the Gov- 

1 Federalist, eminent, it must "exist without limitation; because it is 

No '23 

impossible to foresee or to define the extent and variety of 
national exigencies, and the correspondent extent and variety 
of the means which may be necessary to satisfy them. The 
circumstances that endanger the safety of nations are in- 
finite; and for this reason no constitutional shackles can 
wisely be imposed on- the power to which the care of it is 
committed. This power ouglit to be coextensive with all the 
possible combinations of such circumstances; and ought to 
be under the direction of the same councils which are ap- 
pointed to preside over the common defence." 
M. p. 151. "The result from all this is, that the Union ought to be 

invested with full power to levy troops, to build and equij) 
fleets, and to raise the revenues wliicli will be required for 
the formation and support of an army and navy in the cus- 
id. p. 150. tomary and ordinary modes practised in other governments," 
and " there can be no limitation of that autliority which is to 
provide for the defence and protection of the community in 
any manner essential to its efficacy, that is, in any manner 
essential to the formation, direction, or support of the 
National Forces." The necessity of employing a regular 
force in case of seditions and insurrections is forcil)ly por- 
trayed in the 28th number of The Federalist, 
vattei, Book 3, ]Sfo pcrsou is naturally exempted fi'om taking up arms in 
1760*' * defence of the state, — the obligation of every member of 
•2 Buriamaqui, society being the same. Those alone are excepted who are 

Politic. Law, . i i r- i n- • i x- • /• 

part 4, cii. 1,8. incapable ot handling arms or supporting tlie latigues ot 

14, p. 158. ^^,., J. This is the reason why old men, children and women 

are exempted. " The clergy cannot naturally and as a matter 

of right arrogate to themselves any peculiar exemption. To 

defend one's country is an action not unwortliy of the most 

sacred hands." 

vattei, id. 8. 8. Evory citizcn is bound to serve and defend the state as far 

Bowycr'8 Const. «is he ts Capable ; and it would seem that the duty incumbent 

Law of Kns- ^^j^ evci'y citizcn to defend his country, as well from foreign 

ajxgression or injury as from intestine disorder, was fully 

recognized by the common law. 



In the first Constitution of Pennsylvania, and in those of 
several other States, the duty of the citizen to yield his per- 
sonal service when necessary, or an equivalent thereto, is ^ 
distinctly asserted. This is the more remarkable in our 
State, as, owing to the preponderating influence of the Society 
of Friends, the colony had no efficient militia law, at any 
time, and in the earlier and later periods of its liistory, none 
at all. In 1756, the Assembly prepared a new militiu bill, Gordon's nist.. 
by which all the male inhabitants were subjected to military °^ ^''""/^'"'' 

• ' "J >^ nia, p. :!40. 

duty, commutable for a fine in the ordinary courts of justice. 
The officers, however, were still elective, for which reason 
the Governor objected to the bill. He also required, that 
persons alleging conscientious scruples against bearing arms, 
should appear in open court, and declare to what society 
they belonged ; that they were truly and religiously op- 
posed to war ; and that a court-mai*tial should be authorized 
to punish by death or otherwise, as was provided by the 
English militia bill. But the house, unwilling to strengthen 
the hands of the executive, by giving him the appointment 
of the officers, and to lodge such powers in courts-martial, 
refused to remodel their bill. 

The battle of Lexington havino; roused the indisination of 
the people, the Committee of Correspondence of the city and 
county of Philadelphia, to supply the want of a militia law, 
called a meeting of the citizens, who resolved to form a mili- 
tary association, for the protection of their property, their /^ 
liberty, and their lives. This association extended through 
every county of the province, its members furnishing them- 
selves with the necessary arms. The Assembly approved 
the association, and engaged to provide for the pay and 
sustenance of those called into actual service. The Commit- 
tee of Public Safety prepared articles for the government of 
this military association, but the citizens refused to sign them, 
alleging that many persons, rich and able-to perform military 
duty, claimed exemption under pretence of conscientious 
scruples. Both parties addressed the Assembly, the Com- 
mittee of Correspondence, and of the officers and soldiers of 
the military association, saying emphatically, "Be this as it 
may, self-preservation is the first duty of nature, which every 



8 

man indispensably owes, not only to himself, but to the Su- 
preme Director and Governor of the universe who gave him 
being. In political society all men by the original compact 
are required to unite in the defence of the community against 
such as would unlawfully deprive them of their rights, and 
those who withdraw themselves from this compact are not 
entitled to the protection of the society. The safety of the 
people is the supreme law. He who receives an equal benefit 
should bear an equal burden." 
r, April, 1776. The Assembly imposed a fine on all able-bodied effective 
male white persons capable of bearing arms, not associators, 
^ between the ages of sixteen and fifty years ; ministers of the 

Gospel of all denominations, schoolmasters in actual employ, 
and servants purchased bona fide and for a valuable consid- 
14 ivbniary, cration, only excepted, which fine was largely increased by 
Id"' 22'"^^*°' the first Assembly under the State Constitution. 

The revolutionary Congress was a body entirely dependent 
Bradford-s Hist. ,j,i the wiU of the several States, and the good feeling of 
Retts, p. -211. their citizens; for the Articles of Confederation were not 
4 Marshall's finally ratified by all the States until the 1st March, 1781. 
in<''toii 1) -ui ^^'^^ Congress assigned the quota of troops to the several 
8 I'etinsyivania States, and they followed the example by apportioning to the 
Archives.!,. 267 ^p^.^,j..jl ^.,,,^^1^,^ [\^^. ,jnota to bc furnished by each. This 

3 iniciroth'.s division of the State Avas again to be subdivided into classes, 
iiist. u. states, .,,,([ each class was to furnish a man by coiitri])ution or taxes 

p. 27:>, :!10, 310. . . 

2 Ramsay's Life imposed. Ill somc iiistauces a draft was to be used in the 

of wa.shinston. j.j^j^t i-gyort. Pennsylvania concentrated the requisite power 

in the President, Mr. Keed, and authorized liim to draw forth 

.'i Gordon's Hist. 

u. States, p. 62. the rcsourccs of the State, under certain limitations, and if 
necessary to declare martial law over the State.* 

The Articles of Confederation did not really increase the 
powers of Congress, for the land forces were to be raised l)y 
the several States upon requisitions for their several quotas, 
and the Legislature of each State was to appoint the regimen- 
tal officers, raise the men, and clothe and arm and equip them 
in a soldierlike manner, at the expense of the United States, 

* President Reed [)roclaiined martial law on 9th June, 1780. Penna- 
Journal, 21st June, 1780. 



and march tliem to the place appointed. All the action 
therefore of the Confederacy was upon the States, and not 
upon the people, and its entire inadequacy to fulfil the pur- 
poses of a general government was felt and acknowledged 
by all reflecting men. It was simply a confederacy, while 
the Constitution of 1787 is a truly national government, 
acting not upon the State governments, but directly upon 
the people of the United States, as a nation, by whose free 
will it was established. 

The power therefore to raise and support armies was from 
sheer necessity given to Congress, for it was a right which 
could not from the nature of things be reserved to the people, 
nor to the States, who could not step beyond their own nar- 
row limits. It is clear, then, that whatever means might be 
required to raise an army, could be used by the Congress, 
and they were the sole judges of its expediency and propriety. 
Now there is not a word in the Constitution limiting:; the 

CD 

natural power of the Government over its citizens, to oblige 
them to render personal service as soldiers, nor is there a 
single phrase implying that they can only be compelled to 
serve, when they choose to do so by voluntary enlistment. 

The plan of General Knox, Secretary of War, submitted is .lan'y, 1790. 
to Congress by General Wasliington, contemplated as liable ^^ 
to service all persons between the ages of eighteen and sixty, 
and stated certain general principles on which it was formed ; 
the fourth is in these words : " That every man of the pro- 7 Niies' Keg. p. 
per age and ability of body, is firmly bound, by the social "^''' 
compact, to perform personally his proportion of military 
duty for the defence of the state/' 

Rhode Island was the last State which ratified the Consti- 
tution. On the 29th May, 1790, their convention made a 
declaration of rights^ the 18th paragraph of which was : " That ^ Eiiiot-g Dei), 
any person religiously scrupulous of bearing arms ought to ^' 
be exempted upon payment of an equivalent, to employ an- 
other to bear arms in his stead." They at the same time pro- 
posed certain amendments to the Constitution, the sixth of 
which was : " That no person shall be compelled to do mill- id. p. 372. 
tary duty, otherwise than by voluntary enlistment, except in 
cases of general invasion, anything in the second paragraph 



10 

of the sixth article of the Constitution, or any law made 
under the Constitution, to the contraiy notwithstanding." 
votr's ..f A.ssera- rpjjg works of Buvlamaoui, Montesquieu, Puffendorf, Gvo- 

Ulv. 177-; to . 1 ' 1 ' ' 

17S0. |.. :;, &c. tius, Locke, Vattel, and all the Avriters on government and 
the laws of nations, were familiar to the statesmen of the 
Revolution, and were largely used in their discussions, which 
from necessity involved the fundamental principles of civil 
society. No one, for instance, can read the second chapter 

Vattel, Book 3 yf ^j^g third book of Yattel's Law of Nations, without seeing 

eh. 2, vol.2, p. 3, ' o 

Ac, ed. 1700, in that the clause to raise and support iii-inies, and the conse- 
ua . A '■'''■J • q^^gj^j. po^YQr to oblige every able-bodied muu to become a 
soldier, is but an embodied expression of the sound views of 
this enlightened writer. The very volume I quote from bears 
the marks of the studies, most probably, of some of the 
great men who framed the Constitution, and to whom the 
use of the library had been tendered. 

There can therefore be no doubt that the contemporane- 
ous construction of this clause was that adopted by General 
Knox and approved by President Washington, ))articularly 
when we advert to the amendment of Rliode Island, pro- 
posed four months afterwards, to confine this compulsory 
power to cases of general invasion. 

In the second war of independence, Mr.^ Monroe, then 

7 Nii.s- K.^. p. Secretary of War, with the approbation of Mr. Madison, a 

137. 17 Oct. 1814 . f. 1 y-i • • 1 PI 1 ,. rn. 

tramer ot the Constitution, ana one oi the authors oi Ihe 
Federalist, proposed a plan to Congress by whicli the free 
male population of the United States, between eighteen and 
forty-five years, should be formed into classes of one hundred 
Id. i> 139. men, each class to furnish — men for the war, within thirty 
days after the classification, and replace them in the event 
of any casualty. If any class failed to provide the inen 
required of it, williiii the time specified, the}'' should be raised 
by draft on the whole class, any person thus drafted being 
allowed to furnish a substitute. This, therefore, was a com- 
pulsory draft, and the argument of Mr. Monroe in favor of 
the power of Congress, is clear, full, and exhaustive, and 
never has been answered. (See Note A.) 

It was opposed by the peace men of that day, gentlemen 
who favored the Hartford Convention, and who were entirely 



11 

opposed to the general administration, and the further prose- 
cution of the war. Mr. Charles J. Ingersoll supported the^Annaisofisth 
measure in a very able speech, and after a lapse of thirty- so:. 
seven years, his deliberate iudo-mcnt was in favor of its con-^°'^®'"'''°'^'''"'^'' 

_ "^ _ ' . of Second War, 

stitutionality. The war was drawing near to a close, all 2d series, vol. 2, 
parties expected peace, and the news of it in February, 
1815, stopped all further warlike preparations. 

In the State of New York, then strongly in favor of the 
administration and the vigorous prosecution of the war, at 
a special session of the Legislature called by Governor Tomp- 
kins, Mr. Van Buren introduced a bill into the Senate to 
raise twelve thousand men by drafting, and placing them in 
the service of the United States, Avhich, after being amended, 
became a law on the 24th of October, 1814. It was stigma- street's New 
tized as a conscription bill by the opposition, and in the Jj°^g^,j°j^^" 
Council of Revision, Chancellor Kent reported objections, 443. 
the first of which was, "Because the Constitution of the 
United States has granted to Congress the power to raise 
and support armies, and with it tlie exclusive power to lay 
and collect imposts, and the concurrent power to lay and col- 
lect taxes, duties, and excises, in order to provide for the 
common defence and general Avelfare." These objections 
were, however, overruled by Governor Tompkins, Chief Jus- 
tice Thompson, and Spencer and Yates, Justices of the Su- 
preme Court, and the bill became a law. The same Legisla- 
ture passed an act to raise a corps of four thousand sea fenci- 
bles, and also an act for raising two regiments of men of color. 

Governor Tompkins was an ardent supporter of the war, 
and a most popular executive, and was rewarded by a grate- 
ful people by being twice elected to the high office of Vice- 
President of the United States. 

A bill of a similar character was introduced into the Sen- Senate Joumai, 
ate of Pennsylvania, entitled "An act to raise for a limited p^p'^g^'^^ 
time a military force," which passed that body by a vote ofp-75; id. p. 135. 
twenty-one to nine, but was lost in the House. Mr. Nicholas 
Biddle, then a member of the Senate from Philadelphia, 21, isio. 
made a very able speech in favor of the bill, and voted for it. 

On the 3d March, 1863, Congress passed "An act for en- 12 stat. at l. p. 

'^ 731 

rolling and calling out the national forces, and for other pur- 



12 

poses," by which all able-bodied male citizens, and persons 
of foreign birth who shall have declared on oath their inten- 
tion to become citizens, between the ages of twenty and 
forty-five years, except as therein excepted, are declared to 
constitute the national forces, and to be liable to perform 
military duty in the service of the United States, when 
called out by the President for that purpose. These forces 
were divided into two classes. Those who were drawn by 
lot, after having been regularly enrolled, unless exempted 
by law, were cither to serve as soldiers, or to procure substi- 
tutes, or to pay three hundred dollars. The service is, 
therefore, compulsory, or in the words of the Declaration of 
Rights to our first Constitution, the drafted man must yield 
his "personal service," or "an equivalent thereto," for Con- 
gress has decided it is necessary. I cannot, therefore, doubt 
that this Act of Congress, in the present situation of the 
country, is a clearly constitutional exercise of power by the 
Supreme Legislature of the Union. This is the view enter- 

Washington . 

Chronicle, Sept. tained by two judges of the United States Courts, both men 
19,1863; 20 ^|- gjjijj^gj^^; learning and talents, and living in different dis- 

Legal Intelli- _ o ' to 

geiioor, p. 300. tricts, — I mcan Judge Betts, of New York, and Judge Cad- 
walader, of Pennsylvania. 

If there ever was an occasion to call every man into the 
service of his country, it is the present one, when we are 
engaged in combating the most formid;i.ble, wicked, and 
causeless rebellion known in history, of which the object of 
its traitorous leaders is to destroy the Union, to erect a purely 
slave confederacy, and to make Pennsylvania a border State, 
exposed to the annual inroads of unprincipled enemies. I 
am, therefore, for using the whole population, if necessary, 
of the loyal States, to extinguish this treasonable rebellion. 
I have no idea of allowing Northern sympathizers to stay 
at home, whilst loyal men fight their battles and protect their 
property. I would oblige all such men to render their full 
share of military service, and if I had the power, I would 
place the New York rioters in the front ranks of the army. 

We have, however, been referred to the example of Eng- 
land, as showing that the fr'amers of the Constitution con- 
templated the armies of the Union should only be raised by 



13 

voluntary enlistment. This has been said without a suflS- 
cient examination of the acts of the English Parliament, all 
of which were perfectly familiar to our Revolutionary states- 
men. 

In 1704, 1756, 1757, 1778, and 1779, acts were passed * a°°«-' «h. _ 
for recruiting of His Majesty's land forces and marines, ch. 4; so Geo. 
directing a speedy and effectual levy of able-bodied men tOg'^j^^g.^jg^**' 
serve as soldiers. The commissioners under these acts wereQeo. s.ch. lo. 
required to levy and raise all able-bodied idle and disorderly 
persons who cannot, upon examination, prove themselves to 
exercise and industriously follow some lawful trade or em- 
ployment, or to have some substance sufficient for their sup- 
port and maintenance, to serve His Majesty as soldiers. If, 
upon their delivery to the military officers, such men shall 
appear mora proper for service by sea than by land, they 
may be delivered over to any commissioned officer of His 
Majesty's fleet, to serve as common sailors. None were to 
be impressed under sixteen or above the age of fifty, or who 
had a vote in the election of members of Parliament. 

If an able-bodied man had sufficient substance, however 
idle and disorderly he might be, he could not be impressed, 
and the evident object of these acts was to force the poor 
man to serve at all events, and ne?ver to ml\ compulsorily 
upon the nobility and gentry and the middle classes of the 
kingdom. Lord .Mahon gives a strong instance of this in Lord Mahon's 
the case of a gentleman being by some mistake pressed for a ^'^^'l'']-^'^- 
foot soldier, and confined in the Savoy, and as the habeas / 

corpus act of Charles the Second applied only to criminal / 

cases, could only be released from imprisonment upon an 
application to the Secretary of War. 

Impressment for the navy has always existed in England. - May's const. 
In speaking of these modes of raising men for the army and i^^^ p 259. 
navy, a very able writer of the present day says, " But per- 
haps the greatest anomaly in our laws, — the most signal ex- 
ception to personal freedom, — is to be found in the custo?n of 
impressment for the land and sea service. There is nothing 
incompatible with freedom in a conscription or forced levy of 
men for the defence of the country. It may be submitted to 
in the freest republic like the payment of taxes. The service 



14 

of every subject may be required in such form as the state 
determines. But impressment is the arbitrary and capricious 
seizure of individuals from among the general body of citi- 
zens. It differs from conscription as a particular confisca- 
tion differs from a general tax." 
uLawMaga- In England, when the militia cannot be filled by volun- 

aine, p. 58. , i • \ 

21 Stat, at L. p. teers, the men (the privates) are selected by a compulsory 
*"• ballot, and by an act of 30th June, 1852, the Queen was au- 

thorized to raise eighty thousand private militia men, which 
might be increased to one hundred and twenty thousand. 

In fact, conscription, or its equivalent, has been resorted 
to by every civilized nation. The English government have 
never had in any single })ortion of the world in active service 
^ a native army much exceeding sixty thousand, the number 
which invaded France in 1814, whilst the armies of the other 
allied powers amounted to a million of men. 

The present rebellion, according to Lord Coke, is a war. 
Co. Litt. 249r,: " So wlicu by invasiou, insurrection, reb(!llioii, or such like-, 
Pratt °on Con- ^^^® peaccablc coursc of justice is disturbed and stopped, so 
trai)inds,p.7.'). ^,3 the courts of justicc be, as it were, shut up, et silent leges 

I'i-,z.! cases Sup. . . . . . »> 1 ' 1 

('. i;.. States, 20 intev arma, then it is said to be time oi war; and such, 
li.-aiint. 84; j^lso, is tlic Opinion of the Supreme Court of the Hiiited 

■1 Mack. 635. ' _' ' 

.Monongahela StatCS, and of this CoUltt. 

!,u'''' ?°' T' r The individuals makiiin;; Avar ao;ainst us are l)oth traitors 

Chester, 10 Leg. " ^^ 

Journal, 217. and encmics, and it is waged upon a scale of the greatest 
magnitude, calling into the service of the country an army 
of eight hundred thousand men. It is, therefore, the duty 
of the Government to use every means within the scope of 
their authority to recruit the armies of the Union, and to 
sustain the gallant soldiers and generals who, by their glo- 
rious efforts and sacrifices, are gradually but certainly re- 
storino; the Union to the full extent of its ancient limits. 

I am, therefore, of opinion that the act in question is con- 
stitutional, and that on this ground the motion for a special 
injunction should be refused. Here I might stop, but as I 
have grave reasons for believing that this Court has no 
power in the premises, it is proper to state my views upon 
this point. 

The proposition submitted to this Court by the counsel of 



15 

the plaintiflfs is, that a State tribunal should prohibit an 
officer of the United States, acting in strict conformity to 
an Act of Congress, from performing the duties imposed upon 
him by la^Y. I cannot think wo have any such power. If 
we have it, has not the Governor or the Legislature the same 
power ? and if so, to what must it inevitably lead ? — a col- 
lision between the National Government and one or more of 
the branches of the State Government, of which the judi- 
ciary is certainly the weakest. We have had serious lessons 
on this subject, which should teach us to be careful in as- 
serting that the. State authorities are to be the judges of the 
constitutional powers of the General Goverliment. 

In 1812 the Judges of the Supreme Court of Massachu- 8 Mass. 549. 
setts, all of whom in turn were Chief Justices, gave their 
opinion that Governor Strong, and not the President, was the 
judge of the exigencies in which the militia could be called 
into the service of the United' States. This opinion was sol-*^-"''"'''!'^-'*'"" 

1 1 1 T 1 • 1 • • r ^ c^ 12 Wheat. 19; 5 

emnly overruled by the unanimous decision oi the oupreme<iray, 121. 
Court of the United States upon this same question. 

A celebrated convention, in 1815, in relation to Mr. Mon- 7 Niies' Reg. 

307 

roe's bill for a draft, used this language: "The power of 
compelling the militia and other citizens of the United States, 
by a forcible draft or conscription, to serve in the regular 
armies, as proposed in a late official letter of the Secretary 
of War, is not delegated to Congress by the Constitution, 
and the exercise of it would be not less dangerous to their 
liberties than hostile to the sovereignty of the States. The 
effort to deduce this power from the right of raising armies 
is a flagrant attempt to pervert the sense of the clause in 
the Constitution which confers tliat right, and is incom- 
patible with other provisions in that instrument. The armies 
of the United States have always been raised by contract, 
never by conscription, and notliing more can be wanting to 
a government possessing the power thus claimed to enable it 
to usurp the entire control of the militia, in derogation of 
the authority of the State, and to convert it by impress- 
ment into a standing army." They also denounced as un- 
constitutional the law authorizing the enlistment of minors 



16 

and apprentices v/ithout the consent of parents and guardians. 
The remedy proposed by the Convention was contained in its 

iii.3i'i. first resolution: " Resolved, That it be, and hereby is recom- 

mended to the Legislatures of the several States represented 
in this Convention, to adopt all such measures as may be 
necessary to protect the citizens from the operation and 
^ effects of all acts AYhicli have been or may be passed by 
the Congress of the United States, which shall contain pro- 
visions subjecting the militia or other citizens to forcible 
drafts, conscriptions, or impressments, not authorized by the 
Constitution of the United States." 

We may presume that neither the executive nor legislative 
branches of our State Government would adopt so unpatriotic 
a course, originally marked out by a body of men who, how- 
ever respectable in private life, were believed by the domi- 
nant party and the people of that day to entertain designs 
of a treasonable character. Their rcAvard was a forced re- 
tirement from public life, and involuntary political oblivion. 
But this appeal is made to the State judiciary, who clearly 
have no more right to interfere with an officer of the United 
States, holding any citizen under the authority of the United 
States, under a law of the United States, upon an allegation 
of unconstitutionality, tlian the State Executive or the State 

Abiwnanvs. Legislature would have. This is clear. The Supreme Court 

Booth, 21 How- p, IT-10 1 •Ill-Ill- 

ard, 52;5. O' tfic L uitcd Statcs luivc indeed decided this question m 

direct terms, intended to prevent all interferences of State 
authorities with the execution of the laws of the United 
States by their own officers. It will be recollected that the 
present application is a substitute for the writ of habeas 
corpus, which has been suspended ; and that the plaintiffs in 
the cases before us allege that they have been drafted, and 
have received notice of the draft, and are placed on the foot- 
ing of enlisted soldiers, and liable to be punished as deserters 
should they fail to report for duty, which they have done. 
All these facts appear on the face of the plaintiffs' bills of 
complaint, and the Court is judicially apprised that they are 
in custody, under the authority of the United States. Chief 
Justice Taney says, " They then know that the prisoner is 



17 

witliin the dominion and jurisdiction of another government, 
and that neither the writ of habeas corpus nor any other 
process issued under State authority, can pass over the line 
between the two sovereignties. He is then within the do- 
minion and exclusive jurisdiction of the United States." 
" No judicial process, whatever form it may assume, can have w- 524. 
any lawful authority outside of the limits of the jurisdiction 
of the court or judges by whom it is issued, and an attempt 
to enforce it beyond these boundaries is nothing less than 
lawless violence," which would be resisted by force. 

The doctrine contended for by the plaintiffs' counsel, is sim- 
ply the Calhoun heresy of nullification exploded by General 
Jackson, applied, not by a convention or a State legislature, 
but by a State judiciary, Avho may, by preliminary injunc- 
tions, stop the raising of armies and the collection of taxes, 
duties, imposts, and excises, and thus paralyze the arm of 
Government when stretched out to repel a foreign foe, or to 
suppress a rebellion, backed by several hundred thousand 
men in the field. I cannot agree that this Court can nullify 
an Act of Congress by any prohibitory writ. 

I therefore think this Court has no power to entertain these Am. Law Reg. 
bills, and of course no authority to grant the injunctions °"'' 
prayed for, in which I find I am supported by the Supreme 
Court of Michigan. 

But I am also of opinion, that we have no power, sitting as 
a court of equity, to grant the relief prayed for. Our au- 
thority is alleged to proceed from the 5th clause of the 13th Brightiy's I'ur- 
section of the Act of 16th June, 1836, which is in these "^o"' ''• ■'"i- 
words: The Supreme Court (and now all the Courts of Com- 
mon Pleas and District Courts) shall have the power and 
jurisdiction of Courts of Chancery, so far as relates to 
"V. The prevention or restraint of the commission or con- 
tinuance of acts contrary to law and prejudicial to the 
interests of the community, or the rights of individuals." 

Now neither in this provision, nor in the report of the re- 
visers, nor in any of the decisions of the Court, do I find any 
warrant to grant injunctions to stop the proceedings of 
officers of the United States, under Acts of Congress regu- 
larly enacted. If such be our power, then the sooner the 

2 



18 

Legislature interposes its legitimate power to alter the law, 
and to prevent the various courts of the State from exercising 
a jurisdiction with which they never intended to invest them, 
the better. 

I am therefore of opinion, that under the Act of Assembly 
we have no such jurisdiction as is here claimed. 



APPENDIX. 



EXTRACT FROM MR. MONROE'S LETTER OF OCT. 17, 1814. 

'' Nor does there appear to be any well-founded objection to the right in 
Congress to adopt this plan, or to its equality in its application to our 
fellow citizens individually. Congress have a right, by the Constitution, 
to raise regular armies, and no restraint is imposed in the exercise of it, 
except in the provisions which are intended to guard generally against the 
abuse of power, with none of which does this plan interfere. It is pro- 
posed, that it shall operate on all alike, that none shall be exempted from 
it except the chief magistrate of the United States, and the governors of 
the several States. 

*' It would be absurd to suppose that Congress could not carry this 
power into effect, otherwise than by accepting the voluntary service of 
individuals. It might happen that an army could not be raised in that 
mode, whence the power would have been granted in vain. The safety of 
the state might depend on such au army. Long-continued invasions, 
conducted by regular well-disciplined troops, can best be repelled by 
troops kept constantly in the field, and equally well disciplined. Cour- 
age in an array is in a great measure mechanical. A small body well 
trained, accustomed to action, gallantly led on, often breaks three or four 
times the number of more respectable and more brave, but raw and un- 
disciplined troops. The sense of danger is diminished by frequent ex- 
posure to it without harm; and confidence, even in the timid, is inspired 
by a knowledge that reliance may be placed on others, which can grow up 
only by service together. The grant to Congress to raise armies was 
made with a knowledge of all these circumstances, and with the intention 
that it should take effect. The framers of the Constitution, and the 
States who ratified it, knew the advantage which an enemy might have 
over us, by regular forces, and intended to place their country on an equal 
footing. 

" The idea that the United States cannot raise a regular army in any 
other mode than by accepting the voluntary service of individuals, is 



20 

believed to be repugnant to the uniform construction of all grants of 
power, and equally so to the first principles and leading objects of the 
federal compact. An unqualified grant of power gives the means neces- 
sary to carry it into effect. This is a universal maxim which admits of 
no exception. Equally true is it that the conservation of the state is a 
duty paramount to all others. The commonwealth has a right to the 
service of all its citizens, or rather, the citizens composing the common- 
wealth have a right collectively and individually to the service of each 
other, to repel any danger which may be menaced. The manner in which 
the service is to be apportioned among the citizens, and rendered by them, 
are objects of legislation. All that is to be dreaded in such case, is the 
abuse of power, and happily our Constitution has provided ample security 
against that evil. 

"In support of this right in Congress, the militia service affords a con- 
clusive proof and striking example. The organization of the militia is an 
act of public authority, not a voluntary association. The service required 
must be performed by all, under penalties which delinquents pay. The 
generous and patriotic perform them cheerfully. In the alacrity with 
which the call of the Government has been obeyed, and the cheerfulness 
with which the service has been performed throughout the United States 
by the great body of the militia, there is abundant cause to rejoice in the 
strength of our republican institutions, and in the virtue of the people. 

" The plan proposed is not more compulsive than the militia service, 
while it is free from most of the objections to it. The militia service 
calls from home, for long terms, whole districts of country. None can 
elude the call. Few can avoid tlie service, and those who do are com- 
pelled to pay great sums for substitutes. This plan fixes on no one 
personally, and opens to all who choose it a chance of declining the ser- 
vice. It is a principal object of this plan to engage in the defence of the 
state the unmarried and youthful, who can best defend it and best be 
spared, and to secure to those who render this important service, an 
adequate compensation from the voluntary contribution of the more 
wealthy in every class. Great confidence is entertained that such con- 
tribution will be made in time to avoid a draft. Indeed it is believed to 
be the necessary and inevitable tendency of this plan to produce that 
effect. 

'* The limited power which the United States have in organizing the 
militia may be urged as an argument against their right to raise regular 
troops in the mode proposed. If any argument could be drawn from that 
circumstance, I should suppose that it would be in favor of an opposite 
conclusion. The power of the United States over the militia has been 
limited, and that for raising regular armies granted without limitation. 



21 

There was, doubtless, some object in this arrangement. The fair inference 
seems to be, that it was made on great consideration; that the limitation 
in the first instance was intentional, the consequence of the unqualified 
grant of the second. 

" But it is said that by drawing the men from the militia service into 
the regular army, and putting them under regular officers, you violate a 
principle of the Constitution, which provides that the militia shall be 
commanded by their own officers. If this was the fact the conclusion 
would follow. But it is not the fact. The men are not drawn from the 
militia, but from the population of the country ; when they enlist volun- 
tarily, it is not as militia men that they act, but as citizens. If they are 
drafted it must be in the same sense. In both instances they are enrolled 
in the militia corps, but that, as is presumed, cannot prevent the voluntary 
act in one instance, or the compulsory in the other. The whole population 
of the United States within certain ages belong to these corps. If the 
United States could not form regular armies from them they could raise 
none. 

" In proposing a draft as one of the modes of raising men in case of 
actual necessity, in the present great emergency of the country, I have 
thought it my duty to examine such objections to it as occurred, parti- 
cularly those of a constitutional nature. It is from my sacred regard for 
the principles of our Constitution that I have ventured to trouble the com- 
mittee with any remarks on this part of the subject." 



B. 

Mr. Biddle was in France, with General Armstrong, and the following 
is an extract from his speech in the Senate of Pennsylvania, on 10th 
January, 1815. Mr. Biddle said: "I well know, sir, that a project of 
this kind has been assailed in Congress, where it has been branded as a 
French conscription, the very name of which was fatal to it. One word, 
sir, about conscription. It is thought because Bonaparte made use of it, 
it is improper for any country to resort to anything like it. But take it in 
its most odious form, it is not the project of Bonaparte. It was resorted 
to by the French Convention, in their contest for liberty, when all the 
nations of Europe were arrayed against them, and when they had alone 
the hearts of the people of this country in their favor. It was resorted 
to and found successful in repelling the foes of that republic. The Em- 
peror afterwards employed the .same method of raising troops, and he 
abused it. In its original form it was eflBcient without being tyrannical." 
" Yet with all its faults the French conscription is the most equal mode of 



22 

military levy on the continent of Europe." " I say it, because I have seen 
its operations." " This mode, however, is not peculiar to France; it was 
resorted to in our revolutionary war, long before it was used in France. 
It was made use of by every State in that war." 



c. 

It is obvious that a State court, without declaring an Act of Congress 
unconstitutional, might by their decisions upon its construction, practically 
nullify it, if they can use the writ of injunction to enforce their decrees 
against the officers of the United States intrusted with the execution of 
its provisions. 

D. 

The intention of the Legislature in giving the writ of injunction was 
to enable the court to restrain nuisance, trespass, waste, and proceedings 
at law, but never to substitute it for the writ of habeas corpus in favor of 
a person in custody. It is clear that the State writ could not be used to 
restrain proceedings at law in a court of the United States. Before the 
Act of June 16, 1836, the Supreme Court possessed no general e(juity 
powers, and could not issue writs of injunction, and the Legislature never 
dreamed that by these words that Court would claim under them, to stop 
the execution of the laws of the United States, by officers appointed by 
the General Government in the regular performance of their official 
duties. 



o p I isr I o N^ 

OP JANUARY 16, 1864. 



Upon the present motions heard before us at Nisi Prius, 
several questions were discussed at length by the counsel for 
the complainants. Upon the one, which was essential in 
any aspect to entitle them to ask for the interference of this 
court, the alleged unconstitutionality of the Act of Congress 
of the 3d March, 1863, I have not changed my views, as 
already expressed in my opinion delivered at Pittsburg, on 
the 9th November last. Upon a calm and dispassionate re- 
consideration of the question, I am firmly of opinion that 
this act is a perfectly constitutional exercise of the power 
vested in Congress by the Constitution, and binding upon us 
as judges of the Supreme judicial tribunal of the State, and 
upon all the people of the United States. Upon this point 
I shall say nothing more. 

Another question urged upon us, by one of the counsel, 
was our power to prohibit and restrain by injunction officers 
of the United States, acting under the authority and in strict 
conformity to an Act of Congress, from performing their 
official duties, and thus practically nullifying it within the 
State of Pennsylvania. For such a position no authority 
was or could be cited. No State court before the filing of 
these bills had ever been asked to exercise such a power 
against the General Government, unless a precedent is to be 
found in the conduct of South Carolina in the days of 
President Jackson. 

It was, however, argued that as a power to discharge these 
individuals from the custody of the officers of the United States 
by the writ of habeas corpus issued by this court, existed before 



24 

the suspension of that writ by the President, under the Act of 
Congress, that, therefore, this proceeding might be resorted 
to in order to attain the same end, and thus defeat the inten- 
tion of the Legislature of the United States. If this can be 
done by a State court, then the suspension of the habeas 
corpus by Congress, -when in cases of rebellion or invasion 
the public safety requires it, is evaded and practically nulli- 
fied. Such cannot be the law of the land. 

The habeas corpus operates upon a person in custody ; the 
present injunctions go a step further, — they prohibit the in- 
dividuals from being taken into custody, and if they are 
legally operative, then the officers of the United States never 
can have them in their custody. Now the courts of the 
United States have no authority to grant the writ of habeas 
corpus for the purpose of inquiring into the cause of the im- 
prisonment, where the prisoner is in the custody of State 
officers acting solely under State laws, unless under special 
provisions intended to provide for the effectual execution of 
acts of Congress, or for the protection of citizens or subjects 
of a foreign state under certain circumstances, I think the 
converse of the proposition is true without any exception, 
that no State tribunal can issue a writ of habeas corpus, and 
under it discharge a person in the custody of an United 
States officer acting in strict conformity to an Act of Con- 
gress, and holding him by virtue of the authority thus vested 
in him. In such a case the writ can only be issued by the 
courts and judges of the United States, who are the only 
tribunals to decide upon the legality and validity of the impri- 
sonment. This arises from the nature of the State and Gene- 
ral Governments, so well described by Chief Justice Taney in 
Ableman vs. Bcroth, which really rules the present question. 
The origin and extent of this decision will be better under- 
stood by referring to the opinions of two of the judges of the 
Supreme Court of the United States, who sat in that case, 

1 Biatchford's delivered some years before it was decided. Justice Nelson, 
in his charge to the Grand Jury in 1851, on the subject of 
the Fugitive Slave Law, uses this language : 

Id. (540. "Another subject,'" says the leai-ned Judge, "arising out 

of the provisions of this law, and which has a material bear- 



25 

ing upon its execution, it is proper should be noticed. By 
the second section of the third article of the Constitution, it 
is declared that, ' The judicial power shall extend to all cases 
in law and equity arising under this Constitution, the laws of 
the United States and treaties made or which shall be made 
under their authority." The power, therefore, it will be seen, 
to execute this Act of Congress, belongs to the tribunals and 
authorities of the General Government ; and in respect to 
these, can be executed only by such courts or officers as are 
specially designated in the act for that purpose. The power, 
therefore, is exclusive in these courts or officers, both as it 
respects the tribunals of the State and others of the Federal 
Government. Neither can act or interfere in the execution 
of the law, and in case of any attempt by either to interfere 
or exercise the authority, its acts would be coram non judice 
and void. These propositions are elementary, and so obvious 
as to require no further comment. 

" It seems to be supposed, however, in some quarters, that 
the State power exercised by its tribunals, under the writ of 
habeas corpus, forms an exception to this generally admitted 
doctrine ; and that through the agency of this writ, the fugi- 
tive may be taken out of the hands of the federal officers, 
and the authority or propriety of the arrest or detainer be 
inquired into, and the person be discharged or remanded ac- 
cording to the judgment of the State magistrate. This is 
the exception claimed, to the exclusive power of the federal 
officers designated in the act. 

" It is apparent if this exception can be maintained, that 
there is an end of the complete execution of the law; or, 
indeed, of any law of the Gfeneral Grovernment, by luliieli the, 
-party is subject to an arrest. It is not claimed that the State 
magistrate can under this writ administer the act and en- 
force its provisions, as that authority, as we have seen, is con- 
fined to the tribunals appointed by the act for the purpose. 
The fugitive must therefore be taken, if taken at all, out of 
the hands of the federal officers by force of some other law. 
And the question whether he or she shall be discharged or 
remanded, will depend upon the application of that law to 
the particular case. What that law is, or may be, must ne- 



26 

cessarily depend upon State regulation ; and the rights of the 
claimant under the Constitution and laws of the Union, will 
thus be determined by a law of the State. 

" The effectual abrogation of the act, by the interposition 
of this writ, if admitted, will be still more apparent, when 
we reflect that the power exercised under it is such as the 
State Legislatures may choose to prescribe ; and that the 
State tribunals are not only invested with that j tower, but if 
they act at all, are bound to act in obedience to and in con- 
formity with it. There is no limit, therefore, to the extent l 
of the powers that may be exercised under this proceeding, - 
in respect to the arrest and detainer of the fugitive, but the 
discretion of the State Legislatures. They may confer juris- 
diction upon their magistrates to re-examine and revise the 
acts and decisions of the federal tribunals, out of whose 
hands the fugitive is taken, and the State magistrate would 
be bound to execute the power accordingly. It is manifest 
that it w^ould be impossible to uphold the due execution of 
the laAv, with the admission of any such authority. 

"Conceding, however, the soundness of this general view, 
and the inability of the State tribunals to interfere with the 
Federal authorities, when they are acting upon cases arising 
under the Constitution, laws of Congress, or treaties, still it is 
argued that they possess the power under this writ to inquire 
into the legality of the authority under which the prisoner is 
held, and ivhich may involve the constitutionality of the laiv, 
and the jurisdiction of the court or officer. But it is obvious, 
that the existence of cither on the part of the State tribunals 
would be fatal to the authority of the Constitution, laws and 
treaties of the General Government. No government could 
maintain the administration or the execution of its laws, 
civil or criminal, if their constitutionality or the jurisdiction 
of their judicial tribunals were subject to the determination 
of another." 

Having proceeded to say he considers this question settled, 
he says: "There have been different opinions entertained by 
the judges of the States, as to their power under this writ to 
decide upon the validity of a commitment or detainer by the 
authority of the United States. But those who have been 



27 

inclined to entertain this jurisdiction, admit that it cannot 
be upheld where it appears from the return that the proceed- 
ing belonged exclusively to the cognizance of the General 
Government. 

" These views of the paramount authority of the laws of 
the Federal Government in no way endanger the liberty of 
the citizen. The writ of habeas corpus secured to him under 
that government affords the appropriate and effectual remedy 
for any illegality in the process or want of jurisdiction in the 
courts, or for any unconstitutionality of the law." 

The distinction betw;een the States and the General Gov- 
el-nment upon this point was clearly pointed out by Judge 
Sumner in the Massachusetts Convention, called to determine 
whether the Constitution of the United States should be rati- 2 Eiiiot'e De- 
fied or not. " Congress," said he, "have only power to gus- ^''^^^ ^^• 
pend the privilege to persons committed by their authority. 
A person committed under the authority of the States will 
still have a right to the writ," 

Doctrine of a similar character had been previously laid 
down by the late Mr, Justice McLean in Norris vs. Newton, oMcUan.oa. 
at the May Term, 1850, of the Circuit Court of the United 
States, for the State of Indiana ; and the germ is to be found 
in the opinion of Judge Story in Prigg vs. The Common- le Petero, 53. 
wealth. The power to raise and support armies is exclusively 
vested in Congress, and their legislation upon the subject is 
necessarily exclusive, and can be neither controlled nor 
limited by any State authority, whether executive, legisla- 
tive or judicial, for the Legislature cannot deposit such a 
power in any tribunal whatever. 

Upon this point, however, in addition to the high authority 
of the Supreme Court of Michigan, quoted in my former 
opinion, we have the deliberate and well-considered opinions 
of two able judges of the New York Supreme Courts, in the 
Seventh and Fifth Judicial Districts of that State. 

In the matter of Jordan and others. Judge E, Darwin 2 Am. r>aw Re- 
Smith, of the Seventh Judicial District, held that where on aS'!*''''"'^-^'^*"- 
return to a writ of habeas corpus, a State judge or court is 
judicially apprised that the party is in custody under the 
authority of the United States, such judge or court can pro- 



28 

ceed no further. The prisoner is then -within the dominion 
and exclusive jurisdiction of the United States. 

After speaking of the case of Ableman vs. Booth, which 
2 Am. Law Re- jjg approvcs, the Icamcd Judge says, "Upon this theory 

gi8tor,N.S.758. ^^. . ' . . ^ V -i i , / 

every citizen owes to his country a divided duty, — to the 
National Government he owes allegiance and the duty of 
submission and obedience to its laws, and to the State Gov- 
ernment obedience and submission to its laws ; each in their 
proper sphere. Within the sphere of the National Govern- 
ment its judiciary protects his rights, and vindicates his 
wrongs ; and within the sphere of the State Government its 
judiciary enforces his duties, protects his rights, and gives 
redress for the injuries he may receive in person or pro- 
perty." 
11.759. " In many localities in this country," says the learned 

Judge, " aside from the States which have professedly re- 
nounced the national authority, it is notorious that there are 
some evil-disposed persons, in sympathy Avitli the enemies of 
the country, who are opposed to the war, and who evince a 
spirit of hostility to the Government by hindering enlist- 
ments and volunteering; by enticing enlisted men to desert; 
in secreting deserters ; and resisting by force their arrest 
and return to the army ; and who by opposition to the draft, 
and various other modes of proceeding, are seeking to defeat 
the operations of the Government in conducting the war. 
It would be surprising if such men could not find some 
convenient judge who would issue writs of habeas corpus, 
and, by this process, discharge all persons brought before 
him, on the ground that the laws of Congress authorizing en- 
listments or the draft, and arrest of deserters, and, perhaps, 
the war itself, were unconstitutional, and thus give the color 
of law to their disloyal acts and proceedings." 

An opinion of a similar tenor was delivered by Judge 

Bacon of the Fifth Judicial District, in the matter of Charles 

8 Am. Law Re- E. Hopson, an abstract of which was furnished by the Re- 

gi.ster,N.s.i89. p^j.^g,,^ jJqq^ j^ j^ Barbour. Mr. Mitchell, one of the editors 

of the Register, kindly furnished me with the full opinion of 

Judge Bacon, which is a very able one. 

I think, therefore, the argument drawn from the use of 



29 

the habeas corpus by State courts, to take persons out of the 
custody of officers of the United States, acting under the 
authority of an Act of Congress, fails entirely, and shows 
conclusively fhat the present mode of proceeding by injunc- 
tion to effect the same object cannot be supported. 

I am also of opinion that the words of our Act of As- 
sembly do not cover these cases, as I have said in my 
former opinion. Before the Act of 1836, it is conceded that 
no such power was reposed in any court in this common- 
wealth ; and can it be supposed that the Legislature of that 
day intended to grant to any court the authority to inter- 
pose the State power to prohibit the execution of an Act of • 
Congress under the words, " the prevention or restraint of 
the commission or continuance of acts contrary to law, and 
prejudicial to the interests of the community, or the rights 
of individuals?" The Legislature could not give to any per- 
son or tribunal the pov/er to stop the execution of an Act of 
Congress, If they could not do so in direct terms, they 
could not do it under the cover of general expressions ; and 
they would not do so when the rebellious action of South 
Carolina in attempting to prevent the execution of the tariff 
laws had been so lately rebuked by the hero of New Orleans, 
whose action was sustained and approved by the people of 
Pennsylvania without distinction of party. 

I am also of opinion that this is not a proper subject for 
the jurisdiction of a court of equity ; and upon all these 
grounds, I am in favor of dissolving these injunctions, — which 
never should have been granted. No security as required 
by the terms of the preliminary injunctions has ever been 
entered by either of these complainants, nor have, of course, 
any writs of injunction been taken out in either of the cases, 
and no reason has been assigned for this omission to bring 
home to the defendants the action of this court. This gives 
us full possession of the case, and in the language of Chancel- 
lor Kent, "The granting and continuing of the process (in- 2 jobn ch. 205. 
junction) must always rest in the sound discretion of the 
court." 

I am also of opinion, that my brother Strong was entirely 
right in receiving the motions to dissolve the injunctions at 



30 

Nisi Prius, being the only place in which they could be made, 
and in calling in his brethren to assist him in hearing the 
rules, and that the motions were perfectly regular, requiring 
no affidavits — for the whole case, turned upon the bills and 
affidavits filed by the complainants. The views expressed by 
my brother Strong, as to the entire regularity of the whole 
proceeding, I concur in. I was, therefore, for entertaining 
the motions, and am now for dissolving the injunctions. 

The Southern secessionists contended that their allegiance 
was due to the States, and overpowered any duty which they 
owed to the United States of America, and this mischievous 
- heresy has led to the present causeless rebellion, and has 
made traitors of its blind and reckless supporters. The 
allegiance of every American citizen is due to his country, 
the United States, — if a native, by his birth ; if naturalized, 
by the very terms of the Constitution and the express words 
of the acts of Congress which make him a citizen of the 
United States. Each citizen has therefore the same common 
country, which he is bound to serve and defend as far as he 
is capable. 
Sparks' Life of ^^^^ mottos of the Father of his country were, " Deeds not 
WHshington, wovds," and " For God and my country." At his death, the 
Senate of the United States, in addressing President Adams, 
expressed to him, " their deep regret for the loss their 
country sustains in the death of General George Washing- 
ton." And in his reply, the President said, he received 
with the most respectful and affectionate sentiments in this 
impressive address, " the obliging expressions of your regret 
for the loss our country has sustained in the death of her 
most esteemed, beloved, and admired citizen." 

In his Farewell Address, this great man, after expressing 
the debt of gratitude he owed to his beloved country for the 
many honors conferred upon him, uses this language to his 
fellow-citizens : " The unity of government, which consti- 
tutes you one people, is also now dear to you. It is justly 
so." " Citizens by birth or choice of a common country, that 
country has a right to concentrate your affections. The name 
of AMERICAN, which belongs to you in your national 
capacity, must always exalt the just pride of patriotism, 



31 

more than any appellation derived from local discrimina- 
tions." 

The armies of the Union are not fighting for any single 
State, but they are fighting for their common country, the 
United States of America, as Americans ; and, those who 
have perished in this contest for the preservation of the 
Union, have died under the National flag, which I trust will 
soon wave over the whole undivided territory of our glorious 
and once happy Union. 



APPENDIX. 



This language is used to meet the argument of counsel, that because 
the State, as following the English legal phraseology, an parens patria', has 
a kind of guardianship over various classes of persons, who from their 
legal disability stand in need of protection, such as infants, idiots, and 
lunatics, and over charities, that, therefore, our common country, the 
United States of America, has no right to demand the personal service 
of her citizens as Americans to defend the rights and liberties of her 
people. Is amor patrice the love of a State, containing, perhaps, only 
2120 square miles, and less than 113,000 inhabitants, or the love of the 
United States, with nearly three millions of square miles of territory, and 
a population of over thirty-one millions ? or, when we say, " Dith-c et 
(iecorinn est, pro patria mori," do we mean to apply it simply to the 
State in which we reside, or to the great and glorious common country of 
which every American is a citizen. Such arguments are but repetitions 
of the doctrines of the Hartford Convention in the war of 1812, of South 
Carolina in 1832, and of the men who are now in arms to destroy the 
freest government in the civilized world. They are fortunately not the 
sentiments of the people of the United States, who are pouring out like 
water their blood and treasure to crush a rebellion, unparalleled in the 
history of ancient or modern times, for its entire want of even a plausible 
pretence for its commencement or its continuance. 



3477-125 
Lot 50 














^■:^ ^ .. 









'^ 



.^ 



^^fc % /' ^^^^^ ' %/ ' ^:is- X ^^' ^•"^ ■ 



















,>.,.-r^^, -' ^ 



'o V 



^^ 



.iy , X a '^ 



/.; 



"^o. 



^o ^0-r 






^'^ • K 










^^^ 



^'^ 





-1/ 


_ <i 








■* 




J^ * 


,<^ 


< 




o 










-, 


o 










. ■» 




»>* 








^i* 




o 


^ 


a 






/ 


x^ 


%, 


'-' 










- 


o^"^-^ 


.^* 









'■'' 


.^ 




4- 




'V^' 






'^> ' 












s: ,0-r, ' , 









^ '--y^ 






^9^ 

.v^. 



^"^ ^,t 



^ ..<^ .^1^^*^'. % A^ /K^' 






'i^ 



V -:> 






V 






A-^' 



SC^'- 



.V 






C> ' £. « O • 






.^' 









^■^' 



o^ *oTo' ,0-' 


















V^ .^ 






f * " A 









.-4?^' 









•^ „^^ 






